GTC

Version dated 03/04/2024

HOGO Group -

General Terms and Conditions for Temporary Employment and Recruitment Services

1. APPLICATION

   1.1. These General Terms and Conditions (hereinafter referred to as „GTC“) apply to all legal relationships in the areas of temporary employment, executive search, personnel recruitment, human resources and business consulting, and consulting services (and related activities) between a company of the HOGO Group on the one hand and its respective clients (e.g., employers) on the other; regardless of whether the client is a natural or legal person.

   1.2. For the sake of easier readability, the distinction between female and male spelling is omitted in these General Terms and Conditions. The use of the masculine form refers to both genders.

   1.3. The companies of the HOGO Group in this context are MONTEL GmbH (registration number 371426 s, hereinafter referred to as „MONTEL“), HOGO Holding GmbH (registration number 519053p) (hereinafter referred to as „HH“), HOGO Time Solution GmbH (registration number 262358 x, hereinafter referred to as „HTS“), and HOGO Bau Solution GmbH (registration number 108445 d, hereinafter referred to as „HBS“), as well as Lokdrive GmbH (registration number 493814 y, hereinafter referred to as „Lokdrive“), HOGO Rail Service GmbH (registration number 506719 a, hereinafter referred to as „Rail Service“), and HOGO Professionals GmbH (registration number 544947 v, hereinafter referred to as „HPG“) (MONTEL, HH, HTS, HBS, Lokdrive, Rail Service, and HPG hereinafter collectively referred to as the „HOGO Group“ or the „HOGO Companies“ or simply „we“). These GTC apply to all the aforementioned companies and their business activities. However, contracts are concluded exclusively by one company at a time; nothing in these GTC establishes any (joint) liability of the other companies of the HOGO Group.

   1.4. The GTC shall be deemed accepted upon conclusion of the contract, and at the latest upon utilization of the service, and shall become an integral part of the contract concluded between us and the respective customer.

   1.5. In relation to customers who have the status of an entrepreneur within the meaning of the Austrian Company Code (hereinafter referred to as „Entrepreneur Customers“), these terms and conditions also apply to all future transactions, even if they are not expressly referred to in individual cases, particularly for future supplementary or follow-up orders.

   1.6. With respect to business customers, the GTC shall apply in the version available on the website of the HOGO companies (www.hogo.cc) at the time of the respective contract conclusion.

   1.7. We provide deliveries and other services exclusively on the basis of our General Terms and Conditions. The customer's General Terms and Conditions or the customer's terms of purchase shall only apply if they have been expressly confirmed by us in writing. A reference to enclosed or otherwise retrievable or obtainable General Terms and Conditions of the customer or terms of purchase of the customer shall not be considered an express written confirmation. The customer's General Terms and Conditions or terms of purchase of the customer are deemed to be waived, and we expressly object to them by referencing these GTC. This clause 1.7 applies only to business customers.

2. CONCLUSION OF CONTRACT

   2.1. Unless expressly stated otherwise, all offers for the provision of labor within the scope of the collective agreement for the construction trade and construction industry are exclusively considered offers from HOGO Bau Solution GmbH (FN 108445 d, HBS), and all other offers are exclusively considered offers from HOGO Time Solution GmbH (FN 262358 x, HTS).

   2.2. Unless expressly agreed otherwise, all contracts for the assignment of workers within the scope of the collective agreement for the construction industry and building industry shall be concluded with HOGO Bau Solution GmbH (FN 108445 d, HBS), and all other contracts for the assignment of workers shall be concluded with HOGO Time Solution GmbH (FN 262358 x, HTS).

   2.3. Unless expressly agreed otherwise, all offers for the placement of „Professionals“ - understood as the placement of employees with a gross monthly base salary exceeding EUR 3,000 - shall be deemed offers from HOGO Professionals GmbH (Filing No. 544947 v, HPG), and all other offers for the placement of personnel shall be deemed exclusively offers from HOGO Holding GmbH (Filing No. 519053 p, HH).

   2.4. Unless expressly agreed otherwise, all contracts for the placement of „Professionals“ – the placement of employees with a gross monthly base salary exceeding EUR 3,000 – shall be concluded with HOGO Professionals GmbH (FN 544947 v, HPG), and all other contracts for the placement of workers shall be concluded with HOGO Holding GmbH (FN 519053 p, HH).

   2.5. All of our offers are non-binding.

   2.6. The contract is concluded either by the signing of the offer by both contracting parties or by the issuance of a written order confirmation by us; however, it is concluded in any case by the actual commencement of employment by the client of the workers supplied or placed by us.

   In the absence of an agreed-upon fee, the employer owes us a reasonable placement fee in the event of labor leasing. In case of doubt, this fee shall be based on our last submitted offer, taking into account any cost increases that have occurred since then (in particular, wage cost increases). In any event, our offers for labor leasing are exclusively based on the information known to us at the time the offer was made. Subsequently discovered or becoming known information (e.g., circumstances that would justify a higher classification) entitles us (regardless of fault by either party) to adjust the price (retroactively as well) for contractor clients.

   2.8. In the absence of a fee agreement in the case of personnel placement, the client owes us a reasonable placement fee for each successfully placed employee. In case of doubt, this fee will be based on our most recent offer, taking into account expenses incurred in connection with the personnel placement since then (in particular, travel expenses). In any event, our offers in the area of personnel placement are exclusively based on the information (in particular, the requirement profile and the job advertisement) that was known to us at the time the offer was made.

   2.9. Commitments, assurances, and guarantees from a company in the HOGO Group or agreements deviating from these T&Cs in connection with the conclusion of a contract will only be binding for business customers if confirmed in writing.

   2.10. With regard to business customers, we are entitled to unilaterally adjust the fee during the term of the contract if and to the extent that the cost factors underlying our calculation (e.g., labor costs) increase during the term of the contract. We may increase our profit margin in line with the development of the consumer price index 2015.

3. OUR PERFORMANCE OBLIGATIONS IN THE CASE OF TEMPORARY EMPLOYMENT

   3.1. We provide our services in the field of labor leasing in accordance with the applicable legal regulations, in particular the Labor Leasing Act (AÜG) and the relevant collective agreement applicable to the matter, which for the field of labor leasing is the Collective Agreement for the Trade of Labor Leasing (AKÜ-KV), in its respective current version.

   3.2. The subject of personnel leasing is the provision of personnel, not the performance of specific services. The leased employees work under the leadership, direction, and responsibility of the hirer. We do not owe any work success whatsoever.

   3.3. The employer has the obligation to supervise, instruct, and control the assigned employee. We are merely obligated to contractually commit the assigned employee to comply with the employer's instructions.

   3.4. The employer is obliged to check the assigned workers for their suitability and qualifications immediately after commencement of employment, but at the latest within the first six working hours, and to report any defects in writing. Complaints (rectifications of defects) must be communicated to us no later than within the aforementioned six-hour period (duty to report defects), otherwise all claims by the employer for replacement, as well as any other warranty and damage claims and claims based on a mistake regarding the absence of defects, shall be forfeited (lapsing of claims). For defects that become apparent at a later date and which would not have been recognizable during a careful examination upon commencement of employment (and were in fact not recognized), a period for reporting defects of six working hours from the appearance of the defect shall apply, otherwise all claims by the employer for replacement, as well as any other warranty and damage claims and claims based on a mistake regarding the absence of defects, shall be forfeited (lapsing of claims).

   3.5. In the event of a justified complaint, we shall provide a replacement with suitable labor within three days. Any further claims (e.g., claims for damages) are excluded by mutual agreement and do not exist.

   3.6. If a seconded employee has to testify as a witness in legal proceedings, the employer shall grant them leave without loss of remuneration, and this shall not affect our claim to remuneration.

4. DUTIES OF THE EMPLOYER IN TEMPORARY EMPLOYMENT

   4.1. The customer shall bear all employer obligations existing under the provisions of the AÜG (Law on Temporary Employment) and other labor law regulations, as well as, to the extent that employee protection regulations, equal treatment requirements, and the like are concerned, also the employer obligations. The customer is therefore particularly obligated to comply with the provisions of employee protection law, foreigner employment law, and working hours law. In the event of a violation of these obligations, the customer shall indemnify and hold us harmless.

   4.2. We must be notified immediately if a supplied worker violates their duties. In the event of a sick leave notification, the supplied worker must be informed that a sick leave notification must also be provided to us.

5. PREGNANCY OF A WORKER PROVIDED TO THE CUSTOMER

   5.1. The employer is obligated to immediately inform the lessor of a pregnancy of a worker assigned to their company that has become known to them.

   5.2. Upon becoming aware of a pregnancy of an employee assigned to the client employer, the client employer is not permitted to terminate the assignment and return the pregnant employee to the temporary employment agency until the commencement of the pregnant employee's employment prohibition (§ 3 MSchG).

   5.3. If there is a health risk for a pregnant temporary employee at the contracting employer's establishment, the contracting employer must take the necessary measures by redesigning the working conditions to eliminate any risk to the employee. A redesign may include, for example, interrupting work with additional breaks. If redesigning the working conditions is not possible, the contracting employer must take the necessary measures to transfer the pregnant temporary worker to a different job.

   5.4. The hirer must always employ a pregnant temporary employee in their company in accordance with the agreement made with the lender. Any changes to the working conditions made by the hirer must therefore, in any case, remain within the scope of what was agreed with the lender. A pregnant temporary employee does not have to accept changes to their working conditions or a change of workplace if these do not correspond to the working conditions (regarding place of work, assignment, and working hours) stated in the assignment notification.

   5.5. If a change in the employment of a supplied employee occurs at the client company due to the pregnancy of the supplied employee, the client company must immediately inform the supplier of this. In this case, the client company is entitled to reduce the agreed-upon supply fee - the agreed hourly rate with the supplier for the provision of the employee - by EUR 3.00 per hour.

   5.6. The employer must observe the employment restrictions of the Maternity Protection Act during the period a pregnant employee is assigned to their company. Therefore, the employer is not permitted to employ pregnant assigned workers beyond the statutory and collectively agreed upon daily normal working hours. Likewise, the employer is not allowed to use pregnant assigned workers for heavy physical labor or for night work.

   5.7. Furthermore, the employer is obliged to allow pregnant temporary workers to lie down and rest under suitable conditions during working hours (§ 8a MSchG).

   5.8. In the event of a breach of the employer's obligations arising from section 5 of these terms and conditions, the employer shall indemnify and hold the lessor harmless.

6. WORKING TIME AND HOURS RECORDS FOR TEMPORARY WORKERS

   6.1. In the case of personnel leasing, our claim to remuneration shall be calculated based on hours worked in accordance with the conditions contractually agreed on a case-by-case basis and these General Terms and Conditions; provided, that hours worked shall mean all hours during which the respective leased employee was actually at the disposal of the hirer (regardless of whether the hirer utilized the employee or not).

   6.2. For the first day of a temporary assignment, the entire workday (according to the working time model at the client company) will always be billed, regardless of actual work performed.

   6.3. The documentation of hours worked can (but does not have to) be done through written time records. Unless we instruct otherwise, the form provided by us must always be used for this purpose. The form must be countersigned by the direct supervisor at the employer's premises (foreman, crew leader, department head, etc.) (hereinafter referred to as the „supervisor“). The countersignature by the supervisor constitutes an acknowledgment by the employer of the accuracy of the hours stated in the form. The employer expressly assures and guarantees that the countersigning supervisors have sufficient authority to make such an acknowledgment; we may rely on its validity.

   6.4. In the event that the supervisor refuses to countersign the time records, the employer is obligated to provide us in writing with the reason for refusing to countersign the form within two business days of the submission of the time records by us or the assigned employee, and to specify precisely in what way the time records are (in their opinion) inaccurate (duty to object). In the event that the employer fails to meet this duty to object, the time records shall be deemed approved and recognized even without the employer's countersignature, and any objection to their accuracy shall be precluded.

   6.5. For the avoidance of doubt, it is hereby clarified that the signing of time sheets by our employees does not constitute an acknowledgment of their accuracy. In particular, should it subsequently transpire that the nature and extent of the work performed by the assigned personnel has been incorrectly recorded in the time sheets to our disadvantage, for whatever reason, we reserve the right to make a back-charge based on the actual work performed. We are entitled to assert such back-charges up to six months after becoming aware of the underlying circumstances and up to three years after the date of the original invoice.

   6.6. It is further clarified that we have no obligation to keep time records, but rather we keep them exclusively in our own interest. The obligation to keep working time records rests solely with the employer pursuant to § 26 AZG.

7. OUR SERVICES FOR PERSONNEL PLACEMENT

   7.1. As employment recruiters, we advise our clients in the search and selection of suitable personnel. The details of the responsibilities of a job opening at the client's company and the personal and professional requirements for a candidate to be placed with the client are developed in coordination with the client within the scope of a personnel placement contract.

   7.2. Labor brokering is exclusively defined as brokering service agreements between the client and the individual nominated by us, whereby a service agreement is concluded directly between the client as employer and the labor provided by us as employee.

   7.3. As employment agents, we will endeavor to ensure that the workers we place possess the knowledge and skills that best match the client's requirements profile. However, we cannot provide any guarantee or assume liability for specific knowledge, skills, or qualifications of the placed employees. If no specific agreements were made regarding the employee's qualifications, average qualifications are considered agreed upon.

   7.4. The client must provide us with the essential information for personnel selection when placing an order. This includes, in particular, the start date, expected duration, and location of the work assignment, the required qualifications, the intended remuneration for the positions to be filled, as well as the associated collective bargaining agreement classification according to the collective agreement applicable in the client's company for comparable employees and comparable activities.

   7.5. The recruitment services provided by us do not in any way replace the thorough examination of the candidates nominated by us by the client. The client is obligated to verify the suitability and qualifications of the persons proposed or nominated by us. By establishing an employment relationship between the client and the candidate proposed by us, the client confirms the contractual performance by the employment agency and assumes sole responsibility for the selection made as well as for the future performance by the candidate.

8. BROKERAGE FEE

   8.1. For each worker placed with the client, we are entitled to a placement fee, which will generally be described and agreed upon in the respective placement agreement to be concluded. The placement fee depends on the position to be filled and the required qualifications. A successful placement is considered to be the establishment of an employment relationship between the client and a person proposed by us.

   8.2. The basis for calculating the placement fee is the placed employee’s first annual gross compensation, including all variable compensation components such as, in particular, bonuses, profit sharing, commissions, overtime allowances, and other supplements; alternatively, the placement fee specified in the offer. Unless otherwise agreed, our placement fee amounts to 25% of the calculation basis. If the client does not provide us with a gross annual salary, the placement fee is calculated based on an appropriate gross annual salary for comparable employees at the planned place of work. The client is obligated to promptly provide us with the data necessary for the correct calculation of the placement fee.

   8.3. The claim to the placement fee arises regardless of whether the employment of an employee nominated by us is planned for the client on a full-time, part-time, freelance, or any other legally permissible basis. For part-time employment and any other type of employment, the annual gross salary is to be prorated to full-time.

   8.4. If an employee nominated by us is hired for a position other than the one originally communicated to us by the client, the agreed-upon placement fee shall nonetheless be due according to the principles set forth above. The same applies if an employment relationship is established between a company legally or economically affiliated with the client and a person proposed by us.

   8.5. The claim to a placement fee shall, unless otherwise agreed, be established by the conclusion of an employment relationship between the client and a candidate proposed by us, or by the commencement of employment by the employee if a written employment contract is concluded at a later date. It is irrelevant whether the employee proposed by us actually possesses the qualifications specified in the client's job profile or makes intentionally false statements. We are extremely diligent and constantly strive to review applicants, but cannot be held liable for untrue statements made by applicants. If either party to the employment contract terminates the employment contract before the commencement of employment, our claim to the placement fee and reimbursement of costs for all other agreed and rendered services shall nevertheless remain valid.

   8.6. Our claim to the brokerage fee also arises if an employment relationship is established between the client and a candidate proposed by us within 12 months of the presentation of a candidate's profile. The client is obliged to notify us in writing of any type of employment of a candidate proposed by us within two weeks of the establishment of the employment relationship. Upon request, we are entitled to request a copy of the concluded employment contract.

   8.7. If the customer fails to provide timely notification in accordance with Section 8.6, we shall be entitled to claim double the brokerage fee owed to us.

   8.8. If we ever name a candidate to the client who has already applied to the client independently of our activities before being named, the client must inform us immediately. If this information is not provided and an employment relationship is entered into with this employee, the candidate shall be considered to have been named by us.

   8.9. All expenses incurred in recruitment, such as travel expenses (e.g., official mileage allowance, train tickets, flight costs, hotel accommodation/overnight charges), will be billed to the client at their actual cost. This applies to both our expenses and those of the employees proposed to the client.

   8.10. Expenses additionally requested by the client or insertions or comparable services deemed expedient by us will be invoiced to the client plus duties and taxes and are to be paid by the client upon receipt of the invoice, regardless of the successful completion of a service relationship.

   8.11. The customer is not entitled to offset claims or demands against us with the brokerage fee or to withhold it.

   8.12. Should we provide services to the customer upon request that are not covered by the agreed scope of services, we are entitled to invoice these services to the customer separately. In the absence of a different agreement, reasonable remuneration shall be deemed to have been agreed upon.

9. TERMS OF PAYMENT, DEFAULT INTEREST AND COLLECTIONS

   9.1. In the case of temporary staffing, we generally invoice monthly; however, we are also entitled to invoice at shorter intervals. The staffing fee is to be paid by the client plus the statutory value-added tax at the respective statutory rate, free of any deductions and expenses.

   9.2. In case of recruitment, the client will be issued an invoice for the recruitment fee as well as for all services related to the concrete placement of the employee. The recruitment fee must be paid by the client, plus statutory value-added tax at the respective statutory rate, free of all deductions and expenses.

   9.3. Invoicing for both temporary staffing and personnel placement is solely electronic. The client agrees to provide their e-mail address for this purpose. Delivery of the invoice via e-mail is sufficient; furthermore, any employee or other representative of corporate clients who handled order correspondence with us is deemed authorized to receive these deliveries.

   9.4. Unless otherwise agreed, the payment term for invoices issued to the customer is 8 days (with a bank working day grace period).

   9.5. Entrepreneurial customers are obliged to check invoices issued by us for accuracy within seven days of their receipt and to notify us in writing in the event of (alleged) inaccuracies. In the event that we do not receive any notification/objection within the aforementioned period, all objections to the accuracy of the invoice and the invoice items contained therein will be precluded and can no longer be made.

   9.6. Payments must be made exclusively to the bank accounts we have provided. Cash payments are not permitted and do not release from debt. Under no circumstances are the employees provided by us authorized to collect payments, and payments made to them do not release from debt.

   9.7. The customer must provide us with their VAT number at the start of the contract. The services provided will be invoiced plus 20% VAT. If the tax liability is transferred to the customer pursuant to Section 19(1a) of the Austrian Value Added Tax Act 1994 (construction services), the client must notify us of the transfer of the tax liability, in which case the invoice will be issued without VAT.

   9.8. To the extent we collect outstanding claims against business customers, the business customer shall indemnify us against all costs, expenses, and other expenditures in connection with the enforcement of our claims.

   9.9. For out-of-court collections, the attorneys engaged by us shall be reimbursed for their costs according to the provisions of the Attorneys' Fee Act (RATG) and the Autonomous Fee Criteria (AHK), whereby, deviating from the aforementioned legal sources, it is agreed that simple out-of-court demand letters will be remunerated according to Tariff Item 2 and detailed out-of-court demand letters according to Tariff Item 3A (in each case without a lump-sum fee), and the business customer is obligated to reimburse this amount.

   9.10. With regard to commercial customers, default interest shall be at the statutory rate of default interest.

   We advise against granting wage advances or other loans to the workers assigned to you. However, if a customer decides to grant a wage advance or loan, they must inform us immediately so that we can take this into account in payroll processing for goodwill reasons, if applicable. Under no circumstances are we obligated to consider or reimburse wage advances or other loans granted to assigned workers without our consent, and we assume no liability for this. Assigned workers have no authority to legally bind us.

10. TAKEOVER OF TEMPORARY WORKERS

    10.1. If the provided workforce is hired by the contractor-client as an employee or an employee-like person during a predetermined minimum deployment period, the contractor-client will be invoiced for a reasonable compensation for the incurred expenses, depending on the duration of the assignment, the qualification of the workforce, and the recruitment costs.

    10.2. The minimum assignment period for unskilled or semi-skilled workers is 6 full calendar months. The minimum assignment period for skilled workers is 9 full calendar months, and for commercial and technical employees, it is 12 full calendar months. For clarification: The minimum assignment period serves exclusively as a definition for the provisions of this point 7; however, it does not serve as a minimum contract duration for the contractual relationship between the client and us.

    10.3. If a temporary employee is hired by the client before the expiration of the respective periods specified, the client will be charged a reasonable reimbursement for recruitment expenses amounting to 25% of the hired employee’s annual gross salary.

    10.4. The assumption of the contracted personnel as employees or quasi-employees within the meaning of this clause 7 shall be deemed equivalent to continuing employment of the contracted personnel at the client's facility through a company operating in the same business sector as us (personnel placement/labor leasing).

    10.5. If the Client enters into an (open-ended) employment contract with a candidate we have identified within the timeframes specified in Section 7.2 following the initial disclosure of the candidate’s name, the Client shall also pay a fee equal to 25% of the poached employee’s annual gross salary.

    10.6. The calculation of the lump-sum compensation will be based on the gross monthly salary for full-time employment (for part-time employment, the gross monthly salary will be extrapolated to full-time), rounded up to the next €250, of the recruited employee. The gross monthly salary consists of the gross monthly wage/salary (fixed amount) offered or agreed upon by HOGO Time Solution GmbH for the employee taken over, plus overtime allowances and pro-rata special payments, as well as anticipated increases in the first year of service, and the average of any commissions, bonuses, and allowances in the first year of service. The minimum fee is €2,000.

11. DURATION OF A TEMPORARY EMPLOYMENT CONTRACT

    11.1. Unless a fixed term is agreed upon in individual cases, personnel leasing services are provided for an indefinite period and may be terminated by either party in compliance with the agreed notice period on the agreed termination date. If no other agreement is made, a period of two weeks for workers and four weeks for employees shall be considered agreed; as well as the last day of each month shall be considered the termination date.

    11.2. Furthermore, we have an ordinary right of termination at any time, exercisable without notice, towards entrepreneurial customers. In the event of exercising this right of termination (and only in this case), we are obliged not to charge for the last three working days before the termination of the contract.

    11.3. However, we are entitled to terminate the contract prematurely without observing any deadlines or dates if a valid reason exists. A valid reason is considered to exist in this context particularly if a) the customer is in default of payment for more than 14 days despite a reminder, b) the customer persistently violates statutory or contractual provisions, official regulations or requirements, in particular employee protection provisions, c) the customer fails to fulfill their duty of instruction, supervision or care towards the assigned employees, d) insolvency proceedings are opened against the customer's assets or the opening of such proceedings is refused due to lack of cost coverage, or e) a strike or lockout takes place in the customer's business and no amicable solution can be found with the customer. If the contract is terminated due to the customer's fault, no claims whatsoever can be asserted against us.

    11.4. Furthermore, the employer undertakes to bear all costs associated with so-called „mass layoffs“ that trigger the early warning system according to § 45a AMFG at AMS. This means that the employer shall pay the agreed-upon remuneration for the assignment to the lessor for the duration of the blocking period according to § 45a para. 2 AMFG, as well as for the subsequent notice period to be observed by law or collective agreement.

12. TERMINATION OF A BROKERAGE CONTRACT

    12.1. A recruitment contract may be terminated by either party at any time with 14 days' notice. If an employment contract is concluded between the client and a candidate nominated by us after the termination of the recruitment contract, the full recruitment fee shall still be payable.

13. WARRANTY

    13.1. In the event of personnel leasing, the personnel leased to the client are carefully selected by us. We guarantee the fundamental ability and willingness to work, as well as the general suitability of the leased personnel for the agreed activity, but not for any special qualification of the leased personnel or a specific quality of the work performed or a particular work success. We therefore owe a special qualification of the leased personnel only if such has been expressly agreed upon contractually. In the absence of any other agreement, we are only liable for the average professional and technical suitability of the leased personnel. If we do not reach an express agreement regarding language skills, we are only liable for the minimum level of language skills absolutely necessary for the respective use of the leased personnel (e.g., „construction site German“ for deployment in the construction industry).

    13.2. Our clients are obliged to check the suitability of the assigned employee, as well as their qualifications and language skills, immediately after the commencement of the initial assignment. Any defects must be reported to us within a period of six hours from the initial assignment of an employee; otherwise, claims for warranty and damages shall be excluded. Hidden and latent defects, or defects that arise after the commencement of the assignment, must be reported to us within three working days of their discovery (however, for defects due to non-appearance at the workplace, within six hours), otherwise claims for warranty and damages shall be excluded.

    13.3. In the area of recruitment and placement, we can only guarantee proper procedure in candidate selection. We do not assume liability for a candidate selected or recommended by us, following proper methodical procedures, meeting all expectations set by the client or achieving specific results. Should the client identify deficiencies in our services, they must report these in writing within three business days.

    13.4. Generally, only those properties that have been expressly and contractually agreed upon in writing shall be considered agreed-upon properties within the meaning of § 922 Paragraph 1 ABGB in dealings with business customers. The fulfillment of any other properties is excluded to the extent legally permissible. Furthermore, towards business customers, any warranty for properties that are usually presupposed within the meaning of

    13.5. § 922(1) of the ABGB is excluded to the extent legally permissible.

    13.6. The presumption of defectiveness according to Section 924 of the Austrian General Civil Code (ABGB) is excluded in dealings with business customers; the customer must always prove defects.

14. LIABILITY

    14.1. In principle, we are not liable for damages (property damage, theft, personal injury, financial loss) caused by assigned or brokered employees in the course of their activities at the customer's premises or in connection with these activities (this expressly applies even if the customer uses assigned or brokered workers - with or without our knowledge - in connection with matters of money or securities transactions or the handling of sensitive goods or dangerous tools), unless we are at fault in selecting them, which must in any case be asserted and proven by the customer. The provisions of § 1298 of the Austrian General Civil Code (ABGB) are excluded with respect to business customers.

    14.2. If supplied workers perform business trips using company-owned passenger cars for the employer, the client assumes liability for any accident damage to these passenger cars, the opposing party in the accident, and/or third parties, and expressly releases us from any liability. If the supplied worker uses the client's work equipment, machinery, vehicles, etc., to perform their work, we are not liable for any damage to or caused by them. Before handing over vehicles or machinery to the supplied worker, the employer must verify, at their own responsibility, whether the supplied worker possesses the required authorization to drive or operate such vehicles or machinery at the time of commissioning.

    14.3. We are not liable for damages caused by the non-appearance of provided employees (whether due to illness, accident, or any other reason), unless we are at fault, which in any case must be claimed and proven by the customer. This also applies if the provided employees do not appear on the first day. The provisions of § 1298 of the Austrian General Civil Code (ABGB) are waived in relation to business customers. Furthermore, any imputation of fault of the provided employees to us, in accordance with § 1313a of the Austrian General Civil Code (ABGB), is waived.

    14.4. Due to breach of contractual or pre-contractual obligations, particularly due to impossibility, delay, etc., we shall only be liable for pecuniary damages in cases of intent or gross negligence. This Section 14.4 is the more specific rule compared to all other liability provisions of these GTC and shall take precedence over them in case of contradictions.

    14.5. With respect to business customers, the statutes of limitations set forth in Section 1489 of the Austrian General Civil Code (ABGB) shall be shortened to the effect that claims for damages against a company in the HOGO Group must be asserted in court within six months of knowledge of the damage and the party causing it, but no later than five years from the conclusion of the contract, otherwise they shall be barred by the statute of limitations. The out-of-court assertion of an objection to a claim for payment shall expressly not be considered an assertion.

    14.6. With respect to business customers, liability, regardless of the legal basis of liability (contract, tort, strict liability or other legal basis), shall be limited, to the extent legally permissible, to the lower of the following three amounts: (a) the actual coverage amount of any liability insurance concluded by us, or (b) the order value of the contract, the obligations of which were violated by the respective company of the HOGO Group, or (c) the amount of EUR 5,000 (five thousand Euros). This limitation shall also apply with regard to damage to an item that we may have undertaken to process.

    14.7. Except as otherwise provided in these Terms and Conditions, any liability to the customer for production downtime, loss of profit, wasted expenditure, loss of use, loss of contract, or any other consequential damage, as well as for any contractual penalty obligations incurred by the customer, is excluded.

    14.8. The disclaimer also covers claims against our employees, representatives, and agents for damages they cause to the customer, irrespective of any contractual relationship they may have with the customer.

    14.9. Before operating vehicles and/or machinery, the customer is obligated to verify their authorization to drive/operate such vehicles/machinery at the time of operation; this is regardless of any assurances provided by us.

    14.10. In the event that a supplied worker performs business trips for the customer using their own private vehicle, the customer shall indemnify us from any liability in this regard.

    14.11. If and to the extent the Customer can claim insurance benefits for damages for which we are liable through their own insurance or insurance taken out for their benefit (e.g., liability insurance, comprehensive insurance, transport insurance, fire insurance, business interruption insurance, and others), the Customer undertakes to claim these insurance benefits, and our liability shall be limited to the disadvantages incurred by the Customer as a result of claiming this insurance (e.g., higher insurance premiums).

    14.12. If penalties are imposed on us, or if wage claims are made against us, or if securities are requested from the authorities by the authorities due to incorrect or incomplete information provided by the employer under the Wage and Social Dumping Act, the contracting client shall be fully liable for these penalties, claims, and any disadvantages arising for us as a result.

    14.13. In the case of personnel placement, we are not liable for the client's selection of a candidate nominated by us, nor for the existence of work and residence permits necessary to be employed by the client. Furthermore, we are not liable for the accuracy of the information provided and documents submitted by candidates, particularly concerning their qualifications.

15. DATA PROTECTION AND CONFIDENTIALITY OBLIGATION

    15.1. The contracting parties shall treat business and trade secrets that become known within the scope of the cooperation confidentially on an indefinite basis.

    15.2. To the extent that the seconded personnel gain access to the customer's trade or business secrets or confidential information, the customer shall immediately inform the respective company of the HOGO Group of this circumstance, and we shall then contractually oblige our employees to maintain the trade and business secrets of the employer (customer) (otherwise, there is no obligation on our part in this regard). In any event, we shall not assume any liability for the compliance with confidentiality agreements by our employees, and we exclude all claims for damages in this regard. The customer is free to conclude their own confidentiality agreements with the seconded personnel.

    15.3. To the extent we transmit personal data, in particular special categories of personal data or data relevant to criminal offenses, of applicants, candidates, temporary or placed workers to our clients, or if such clients process such data from temporary or placed workers, the respective client must comply with the statutory provisions. This includes, among other things, the obligation not to transmit application documents and data of candidates to third parties, to correct them if necessary, and to delete/block them once the purpose has ceased. Upon transmission of personal data to the client, the client becomes the controller in the sense of the General Data Protection Regulation (EU) 2016/679 (GDPR) with regard to this personal data. The use of personal data transmitted by us to the client for purposes other than (i) the evaluation and selection of proposed candidates, (ii) the temporary employment and deployment of temporary workers in their own operations, or (iii) the fulfillment of the client's legal obligations is not permitted and is hereby expressly prohibited.

16. FINAL PROVISIONS

    16.1. If the client's company is affected by a strike or lockout, this must be reported to us immediately, and in this case, according to § 9 AÜG, there is an immediate ban on the employment of the temporary workers.

    16.2. Set-off against our claims is only permissible if the customer's counterclaims have either been expressly acknowledged by us or have been legally established by a court. This provision only applies to business customers.

    16.3. Should individual parts of these GTC be invalid, the validity of the remaining parts shall not be affected. The companies of the HOGO Group and the business customer hereby jointly undertake – proceeding from the perspective of honest contracting parties – to make an alternative arrangement that comes closest to the economic outcome of the invalid provision.

    16.4. Austrian law applies, to the exclusion of the referral and conflict of law rules of private international law and the United Nations Convention on Contracts for the International Sale of Goods.

    16.5. The exclusive place of jurisdiction for all disputes arising from (or in connection with) the contractual relationship or future contracts between a company of the HOGO Group and a business customer shall be the court of competent jurisdiction in Wels.